Why Did Lindsey Graham Sell Out?

by Mary

Senator Lindsey Graham had garnered a lot of praise as an honorable and deeply patriotic senator who was not afraid to stand up to the Bush administration's abuse of prisoners and their degradation of the Uniform Code of Military Justice (UCMJ).

Here's what Josh Marshall wrote in May 2004 about the hearings into the Abu Ghraib scandal:

Yet there was a much brighter side to these hearings on Tuesday. For all the dishonor Inhofe brought on them, I was struck by how much of this is being carried by Republicans -- in particular, John McCain, John Warner and, perhaps most strikingly, Lindsey Graham.

Graham has become some mix of the star and the conscience of these proceedings because of his specialized knowledge as an Air Force JAG and his ability to see that this goes beyond partisan politics, threatening as it does not only America's honor, but (in a way someone like Inhofe could probably never understand) also her power.

Graham got it exactly right today when he said: "When you are the good guys, you've got to act like the good guys."

Later as the Bush administration's treatment of prisoners in Guantanamo was revealed to be a Kafka-esque nightmare and was actively being disputed as un-American because they were not even to be accorded the rights written into the UCMJ, he was seen as the logical person to represent the deep concerns of the JAG officers about what was important to our country in living up to the American code of honor.

The Senate debate [held July 2005] nevertheless was extremely valuable, because Senator Lindsey Graham submitted into the Congressional Record six remarkable memos (pdf) written by Judge Advocate Generals of the Armed Forces during February and March of 2003. [In addition to that pdf file, I’ve republished the memos as a separate post, below.] The Senate Armed Services Committee requested these memos in October of last year, but DoD just recently declassified them. (An aside: As anyone who reads the memos can plainly see, there was no justification for classifying these memos, and from all that appears they were classified merely to prevent public debate about an important Administration policy. The improper classification of numerous Administration documents in this affair—including even the Church Report and its accompanying documents—is a scandal onto itself, but is not the topic of this post.)

The memos are extraordinary. They are written by JAGs from the Air Force, Navy, Army and Marines. As Senator Graham put it on Monday, these folks "are not from the ACLU. These are not from people who are soft on terrorism, who want to coddle foreign terrorists. These are all professional military lawyers who have dedicated their lives, with 20-plus year careers, to serving the men and women in uniform and protecting their Nation. They were giving a warning shot across the bow of the policymakers that there are certain corners you cannot afford to cut because you will wind up meeting yourself."

This was the Lindsey Graham who understood the reasons that we codified those rules and obligations into our laws even for the worse terrorists. And he held himself as one with the JAG officers demanding that our government live up to its own ideals and rules.

However, that Lindsey Graham is no more. The Graham we know today is someone who has betrayed his conscience, his honor, and his duty to the JAGs who once saw him as their voice as well as his duty to our country.

Last November it became clear that Graham was no longer on the side of angels, but that he was actively carrying water for the Bush administration as he added an amendment to the Defense Appropriations Bill that was designed to cut the ability for any Guantanamo prisoner from having his day in court. Here's how Katherine of Obsidian Wings described the amendment and it's perverse effects.

No one seems to know. I mean that quite literally: I don't think there is a single person in the country who could tell you with any confidence what effect this bill will have. Marty Lederman lists just a few of the open questions here.

...There are only two upsides. First, the amendment that passed Friday was much worse. Second, this amendment might make the McCain amendment more likely to survive conference and be signed into law.

If so, it won't be because the two make a naturally complementary "package deal", as Senator Graham claims. It will be because the administration decides that while forbidding the CIA from subjecting prisoners to cruel, inhuman and degrading treatment is bad, denying and limiting prisoners' access to courts to enforce those laws is good enough to make up for it.

...I don't really know what Graham's motivations are, but I can't think of any good ones that would explain his actions. I remember being so reassured by his questions at the first hearings after Abu Ghraib: not all Republican politicians were James Inhofe or George W. Bush, here was this conservative JAG officer from South Carolina, and he wasn't going to stand for this. It turns out that it could stand for 18 months before Congress did a single damn thing to find out how this had happened or prevent it from happening again. But a few D.C. District judges' dockets get too full, and it's a national emergency. No time for hearings, no time for markup--we must end habeas corpus NOW, in an appropriations bill after one hour of actively misleading speeches. Thanks, Senators.

She worried that a major issue with the amendment as it was would be made even worse as it moved to law. And she was right to be worried.

What happened next was even more outrageous and truly showed the black demon that had taken over Graham's soul. Because after getting their amendment added to the appropriations bill, Graham conspired with Senator Kyl to scam the Supreme Court to keep them from hearing any cases from Guantanamo, including Hamdan. Here's how John Dean describes it:

The Bush/Cheney Administration has been doing everything possible to keep its treatment of purported terrorist detainees out of the federal courts, particularly the Supreme Court. To assist the Administration, Republican Senators Lindsey Graham of South Carolina and Jon Kyl of Arizona engaged in a blatant scam that was revealed during the briefing of Hamdan.

Senators Graham and Kyl not only misled their Senate colleagues, but also shamed their high offices by trying to deliberately mislead the U.S. Supreme Court. Their effort failed. I have not seen so blatant a ploy, or abuse of power, since Nixon's reign.

What Dean documents is that on the exact day that the Bush administration filed a motion to put a hold on the Guantanamo detainees from being heard in federal court, Graham offerred his amendment that would strip the Guantanamo prisoners the right that had been affirmed in the Rasul decision the previous summer. First he lied to his colleagues when he told them that aliens, non-combatants and prisoners of war had never been accorded the right to be heard in court (Dean cites the cases that show this was a lie). And then after bamboozling his his colleagues into voting for his amendment, he worked with Kyl to create fraudulent evidence that this amendment would affect all cases before the court.

When the conference report came back to the Senate on December 21, 2005, the Congressional Record reported a lengthy colloquy between Senators Graham and Kyl, briefly joined by Senator Brownback. (This extended dialogue runs some 12,000 words.) In this discussion of the meaning of the legislation, Graham and Kyl make several startling statements -- none more so than those that concerned the jurisdiction of federal courts over pending habeas petitions.

"So once this bill is signed into law, you anticipate that the Supreme Court will determine whether to maintain their grant of certiorari [in the Hamdan case]?" Graham asked Kyl. Kyl answered, "Yes, in my opinion, the court should dismiss Hamdan for want of jurisdiction. . . . I think that a majority of the court would do the right thing--to send Hamdan back to the military commission." (Emphasis added [in original Dean post].)

In other words, after previously insisting - and to address Senator Levin's very specific concern on this score - that the revised language would in no way strip the Supreme Court's jurisdiction over Hamdan, Kyl was now maintaining exactly the opposite, with Graham's full cooperation.

Kyl continued, "As for legislative history" -- which he and Graham, his reference implied, were clearly making right then on the floor of the Senate -- "I think it usually is regarded as an element of the canons of [statutory] construction. It gives some indication of what Congress at least understood what it was doing--the context in which a law was enacted. Although, I understand that Justice Scalia does not read legislative history. I suppose that for his sake, we will have to strive to be exceptionally clear in the laws that we write." (Ironically, one reason Scalia disregards legislative history appears to be that he is well aware that Senators have been known to distort it.)

Those viewing C-Span's coverage of the Senate, and the Senators on the floor of the Senate, never heard this part, or any of the rest of, this lengthy colloquy between Graham and Kyl. That's because it never happened. No doubt aides of the Senators wrote this bogus and protracted dialogue, and either Graham or Kyl had it inserted in the record.

I first became aware of it when Emily Bazelon, a senior editor at Slate, wrote about it, after she confirmed the colloquy had never happened. As she noted, inserting comments into the Congressional Record is "standard practice." But what is "utterly nonstandard is implying to the Supreme Court" that Senate debate was live, when it most certainly was not. "When a senator wants to put a statement into the record," Bazelon noted, "he or she signs it, and writes 'live' on it, and, with the routine consent of the rest of the body, into the record it goes." This fact was not revealed by Graham and Kyl in their brief, however.

Did you hear the right wingers harangue that the Supreme Court had illegally taken up the Hamdan case because the Legislative branch had removed these cases from the Court's jurisdiction? Here's Rich Lowry of the NRO complaining that the Court was out-of-bounds:

Last year, Congress (you might have heard of it — it writes the nation’s laws) passed a bill signed into law by the president of the United States (he also should be familiar — the nation’s commander in chief). It said that "no court, justice or judge" shall have the jurisdiction to consider habeas-corpus applications of detainees at Gitmo. It would take a legal escape artist on par with David Blaine to wiggle out of that one, but, sure enough, five Supreme Court justices were up to the task.

Guess what, Rich. Fraud doesn't count. And as Dean wrote, what Graham and Kyl did was fraudulent. The court found out about this little scam and exposed it. They had every reason to hear this case and to tell the Bush administration that they don't get to decide everything by themselves.

So where does it leave Senator Graham? Well, he stands exposed as a liar, a cheat and a hypocrite. In a more sane time he would be impeached for what he did.

And what is it about the Bush administration that so many are so easily denigrated and corrupted? What was Graham's price? Or more likely, what hold do they have over him?

So how many people will have their reputations and their integrity besmirched by their association with this administration?